Build America, Buy America (BABA)

US Fabrics Analysis of “Build America, Buy America (BABA)” with Regard to Geosynthetic Products (Geotextiles)

IMPORTANT

It is imperative that customers notify their US Fabrics' representative of BERRY/BAA/BABA requirements PRIOR to the pricing and delivery of any geotextiles to a federally funded project.

There is currently much confusion and a concerning lack of clarity regarding the use of geosynthetics or “construction fabrics” on federally funded projects under the purview of the Buy America Act (BAA) and the affiliated Build America, Buy America (BABA). A bit of background will be helpful to understand why we have arrived at this particular point in time.

Buy America Act of 1933 (BAA)

The Buy America Act was passed into law in 1933 during the Great Depression with the intent to offer protection to US manufacturers from foreign competition. BAA requires the government have a “domestic preference” to “end products” such as construction materials used on federally funded infrastructure projects. A domestic end product was defined as something manufactured in the U.S. with domestic components totaling at least 50 percent of the total component cost. The law included a waiver for items considered “Commercially Available Off-the-Shelf (COTS)” that were manufactured in the US, regardless of the foreign component cost. It is important to note the “preference” language allows the government to purchase foreign end products if the cost of the least expensive domestic product is considered “unreasonable.” These standards remained pretty much intact until recently.

Recent Changes to BAA

On July 15, 2019 President Trump issued Executive Order 13881—Maximizing Use of American-Made Goods, Products, and Materials. Among other revisions. it upped the requirement to a 55 percent domestic component cost for end products to qualify as domestic. This was offically implemented Jan 19, 2021 when the Federal Acquisition Regulatory (FAR) Council issued its final ruling on the new requirements.

On January 25, 2021, The Biden White House announced Executive Order (EO) 14005 - Ensuring the Future is Made in All of America by All American Workers. Included in this order was a call for an extensive review of the BAA.

As a result of this review, on November 15, 2021 President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA) which includes the Build America, Buy America Act (BABA). This included a “Temporary Waiver of Buy America Requirements for Construction Materials” as the government reviewed US manufacturing capabilities for certain products. This waiver expired on November 10, 2022. Unfortunately this period proved too short to address all concerns.

The Current Situation

For the geosynthetics (construction fabrics) industry, serious confusion surrounds the definition of our products. There are two options: “manufactured products” or “construction materials.”

Are Geosynthetics a Manufactured Product?

According to the US Dept of Labor: “All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.”

This would require geosynthetics be manufactured in the US, but allow the use of some foreign raw materials in the process.

Are Geosynthetics a Construction Material?

According to The White House: “All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.”

A further clarification of the term reads: “The IIJA finds that “construction materials” includes an article, material, or supply— other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives— that is or consists primarily of:

• non-ferrous metals;
• plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);
• glass (including optic glass);
• lumber; or
• drywall.”

This definition would seem to preclude the use of any foreign material, regardless of the domestic location of the manufacturing facility.

No Guidance or Clarification Given

Unfortunately, the US Government has not issued any guidance to help our industry accurately define our products. This lack of guidance applies to the very 50 state DOT’s who will be at the forefront of specifying and utilizing these materials. This confusion is underscored by recent communication from the OHIO DOT.

On April 28, 2023 ODOT Office of Materials Management offered this guidance to our industry: “. . .with regards to construction materials and manufactured products, geotextile fabrics have been reviewed by the Department and were understood to be a construction material. However, recent discussions with other state DOTs have determined that the majority of them are continuing to consider geotextile fabrics as a manufactured product . . . “

At this point in time, unless a specifying entity has deemed otherwise, US Fabrics is considering geotextiles to be a manufactured product.

A Real Problem

However, the confusion over definition is not a concern for woven, stabilization and separation, “slit film” geotextiles. Regardless of the ultimate definition for these widely used, cost-effective and successful products, domestic production is a real problem.

US Fabrics is not aware of any current domestic production of woven “slit film” geotextiles. Over the last decade or so, an influx of low cost, foreign manufactured slit-films destroyed the domestic manufacturing base for these products. The majority of the domestic looms dedicated to manufacturing woven slit-films have been disassembled and shipped overseas, parted out for repair of other looms, or have been destroyed. Whatever intact looms that remain are in disrepair and/or obsolete. It is US Fabrics’ opinion that this capacity will never return to the United States.

There are currently 28 State DOT’s that have these items in their standard specifications, including the influential DOTs in Washington State, Pennsylvania and New York. Suppliers and contractors working on projects in these 28 states should be very cautious in verifying the source of the materials quoted and notifying the DOT of any conflicts/availability issues in fulfilling the existing BABA requirements.

Does US Fabrics Provide BABA Compliant Geosynthetics?

For purposes of compliance with Public Law 117‐58, Build America, Buy America (BABA) included in the Infrastructure Investment & Jobs Act (IIJA) – also referred to as the Bipartisan Infrastructure Law (BIL) – under Title IX, Subtitle A, Part I – Buy America Sourcing Requirements, US Fabrics can provide domestically produced geosynthetic manufactured products with the exception of stabilization and separation, “slit film” geotextiles

DISCLAIMER

While the information contained herein is believed to be accurate, it is not warranted for accuracy whether originating with this company or not. US Fabrics does not have the statatory knowledge or legal authority to determine the correct definition of our products under BAA/BABA law. End users, suppliers, specifiers and governing authorities are advised to confirm in advance of need that the products meet current and applicable BAA/BABA requirements and are suitable to their circumstances.